I argued above that Miller 1 was about the scope of privileges. While the government had a broad prerogative to conclude and withdraw from the treaties, this did not include a specific power to withdraw from the EU treaties, as this would mean that this prerogative would hinder legislation and amend national law and eliminate individual rights. Thus expressed, the interpretation of a broad prerogative corresponds to the way in which courts apply the principle of legality to interpret general legal provisions protecting fundamental rights. In UNISON, for example, the power conferred by law on the Lord Chancellor to set court fees did not extend to the power to set the costs of the labour courts, which undermined access to justice by making it virtually impossible for many people who had recourse to the labour courts to pay costs. If, as the CCSU suggests, it goes from source to purpose, it can also be argued that a principle similar to the principle of legality applies to privileges. Both are executive powers that should be subject to similar judicial review, although they have a different source. This does not mean, as the High Court suggested in Miller 2, to overturn justiciability, forgetting that “the question of justiciability comes first, both logically and legally.” (at [41]). Applicability can always come first. As Lord Pannick has argued, greater caution is exercised with respect to privileges, which are political in nature. In other words, the subject matter can be used as a prima facie indication of enforceability. For example, if a privilege is an exercise of high policy, this suggests that it may be reviewed on fewer grounds for judicial review or that the court should review the exercise of that privilege in a less rigorous manner.
The subject matter remains important, even if the courts focus on examining possible grounds for legal review in order to establish enforceability. More “political” privileges, for example, could only be illegal if they violate the rule of law or do not follow clear principles of natural justice, rather than being criticized as irrational. Moreover, such “political” privileges can only be illegal if the exercise of the privilege is so absurd that there is no possible rational justification for its exercise. […] A provision empowering the Lord Chancellor to fix court fees must be interpreted in the light of the principle of legality. It was assumed that Parliament had not infringed the fundamental right to . The obvious objection to the above argument is that the principle of legality is a principle of statutory interpretation. But when it comes to most privileges – and especially the privileges of prorogation – there are no laws to interpret. So how can it be applied to privileges? There are two main arguments against this objection. 3 See, for example, R.
v. Secretary of State for the Home Department, ex parte Stafford [1999] 2 A.C. 38, 47–49; R. v. Lord Chancellor, ex parte Lightfoot [2000] Q.B. 597, 607–10, 623–24; R. (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54, [2011] 2 A.C. 15, at [31]. Even if the PoL is not revived, for example because the common law norms at stake are not considered sufficiently normatively important to trigger the principle of legality, a weaker presumption may still apply in favour of preserving common law norms: Burrows, A., Thinking About Statutes (Cambridge 2018), 71-74CrossRefGoogle Scholar. This chapter deals with the principle of legality.
The version of legality defended here as an integral part of the convention system is that which requires that official action in a democratic state be positively authorized by law. The version of legality contained in the European Convention on Human Rights and human rights law is consistent with the democracy-oriented model outlined in this chapter. The first section examines legality and the “rule of law.” The second part deals with representative democracy, the European Convention and the principle of legality. The third section deals with the importance of legality in enforcement. The last section deals with the common law. Common law challenges to legality are raised without a legal status that raises questions of legitimacy. This blog post will make two arguments. First, she will argue that the High Court`s interpretation of the CCSU in Miller does not provide the whole story. As such, it does not provide an accurate account of when prerogatives are justiciable. Second, it will argue that, given the current constitutional circumstances, there are strong constitutional reasons for the Supreme Court to rely on the CCSU and recent developments in jurisprudence that recognize the principle of legality as a constitutional principle and not merely as a principle of interpretation. As such, this or a sister principle can and should also apply to privileges.